California: Hey, maybe communism isn't so bad after all

It may be a tad bit easier to land a state government job in California soon, at least for some people. With a new bill recently passed (by the skin of its teeth) in the state assembly, the Golden State may be taking down the dusty old sign which reads, Communists Need Not Apply. Apparently the idea of having card carrying communists working in government positions in the United States is antiquated, at least in the opinion of California Democrats. (Associated Press)

Being a communist would no longer be a fireable offense for California government employees under a bill passed Monday by the state Assembly.

Lawmakers narrowly approved the bill to repeal part of a law enacted during the Red Scare of the 1940s and ’50s when fear that communists were trying to infiltrate and overthrow the U.S. government was rampant. The bill now goes to the Senate.

It would eliminate part of the law that allows public employees to be fired for being a member of the Communist Party.

Employees could still be fired for being members of organizations they know advocate for overthrowing the government by force or violence.

On the one hand, it’s fairly easy to assume that this is just the California Democrats trolling everyone. I mean, is this really a serious problem in the HR department out there? Are there lines of registered communists hanging around the unemployment office because they’re being barred from civil service? A quick search on the web for the Communist Party USA and other related groups reveals a variety of estimates, but the general consensus appears to be that there are somewhere between 2,000 and 20,000 card carrying communists in the entire country, depending who you ask. And sure… it’s both fun and easy to guess that California has more than their fair share, but we still can’t be talking about very many people.

Also, the bill which passed the assembly takes pains to point out that you would still be barred from employment if you advocate for overthrowing the government. But if you’re a registered communist, aren’t you sort of advocating for that by definition even if you propose to do it at the ballot box?

But I suppose if we have to take this seriously (not that I am at this point) it’s worth asking if such a ban is technically legal. After all, it doesn’t seem like you could legally bar anyone from a government job for being a registered Democrat, Republican, Green Party member or anything else. But looking into it further, it appears as if political affiliation isn’t really a protected distinction in terms of civil rights. Shortly after the election there were lefty employers who were stepping up to say that they didn’t want any customers or employees who were Trump supporters. The Washington Post looked at the question at the time and found that it varies from state to state in terms of legality.

Is a private business’s refusing to serve people based on their political affiliation legal? How about firing employees for their politics (something that might be implied by “you are not welcome at 1st In SEO and we ask you to leave our firm” and “break ties with any person”)? It turns out that this depends on the jurisdiction, and on whether the business is discriminating against clients or employees. The First Amendment doesn’t apply to such private businesses (incidentally, whether or not they take government funds, see Rendell-Baker v. Kohn (1982)), and federal law generally doesn’t ban political affiliation discrimination, so it ends up being a matter of state and local law. In New Mexico, for instance, discriminating against clients on this basis is legal — but firing employees, or threatening to fire them, based on their politics is a felony.

Of course most of those scenarios dealt with businesses in the private sector. But the foundation for those rules is still found in state law. If the state bars employment discrimination based on political affiliation for private enterprise then they couldn’t very well do it for government jobs. But if there is no such rule then it sounds like it’s fair game. And it’s been fair game to ban communists in California for more than half a century.

All of this discussion is, at least hopefully, hypothetical. Even in a place as far to the Left as California, do you really want to be the team that hangs out the “Communists Welcome” sign? Of course, as soon as I finished typing that question I remembered we were talking about California, so it’s probably not that obvious after all.

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